A libel per se case. Plaintiff appeals from a dismissal of his petition for failure to state a claim upon which relief can be granted. Plaintiff had sued the defendant for libel per se because of a letter sent by defendant to a lawyer. This letter stated that plaintiff’s credit card account with Standard Oil Division of Amеrican Motor Company was delinquent and that the plaintiff had not been willing to work out a reasonable schedule of payment. The *369 letter then authorized thе lawyer to begin legal action against the plaintiff. Gulf Coast also sent copies of this letter to the plaintiff and to Standard Oil.
The defendant’s records werе in error, however, and plaintiff’s account was actually paid in full. Three months before Gulf Coast sent the letter to the lawyer, Standard Oil had written plaintiff informing him that defendant had been told to discontinue collection action and that plaintiff should disregard any further collection efforts by Gulf Coast. One month after its first letter tо the plaintiff, Standard Oil again wrote him, apologizing for the errors in handling his account.
As stated, plaintiff’s petition alleged libel per se. The Missouri statute defining libel rеads: “A libel is the malicious defamation of a person made public by any printing, writing, sign, picture, representation or effigy tending to provoke him to wrath or exрose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse * * Section 559.410.
1
Any language fairly included in the statutory definition is libelous per se. Becker v. Brinkop,
The controlling words in this section are “malicious defamation,” and it must be shown that words constitute a defamation before the court will apply the public hatred, contemрt feature.
Coots,
supra, 1. c. 53. “Defamation includes the idea of calumny, aspersion by lying; the injury of another’s reputation in that way. To defame is the speak evil оf one maliciously, to dishonor, to render infamous.” Brown v. Kitterman,
We are aware that if words come within the meaning of Section 559.-410 without the aid of extrinsic facts, they constitute libel per se and are actionable on a mere allegation of general damages.
Brown,
supra,
In addition, the general rule in this area of law is that it is not libel per se to publish of one that he owes a debt which is long past due where that charge does not affect the person in his business, vocation, or profession. 53 C.J.S. Libel and Slander § 98. While neither our research nor the cases cited by either party havе led to a Missouri case which expressly adopts this general rule, we believe that language used in cases points to acceptance of it. See e. g„ Coonis v. Rogers,
We, therefore, hold that defendant’s letter did not constitute libel per se.
Plaintiff’s cause is based on libel per se, and while we need not go further, we will discuss libel per quod. A petition based on published words not constituting
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libel per se may state a cause of action for libel per quod but must allege special damages in order to state a cause of action. Langworthy, supra,
We do not believe that attorney’s fees can be considered special damages under the circumstances of this case in order to satisfy the requirements that an action for libel per quod allege spеcial damages in order to state a cause of action. The rule is that ordinarily attorney’s fees cannot be recovered as damages in the аbsence of statutory authority or a contract provision. Munday v. Thielecke,
It has been specifically held elsewhere that the allegation of attorney’s fees as special damages is not sufficient to make a statement defamatory per quod if not otherwise actionable. Here the only special damage alleged is entirely the result of the plaintiff's own conduct in paying $50.00 to his attorney to “advise Gulf Coast Collection Agency not to proceed with a lawsuit against plaintiff.” This payment was made after Standard Oil twice in writing admitted the billing was erroneous. Plaintiff may not pull himself up by his own boot straps and by such expenditure create a cause of action for himself where one dоes not otherwise exist. Bigelow v. Brumley,
Since we have determined that the sending of the letter to the lawyer with copies to plaintiff and Standard Oil did not constitute libel per se nor state a cause of action for libel per quod because the petition failed to allege damages cognizаble in law, we hold that the trial court properly dismissed plaintiff’s petition. The determination of this issue is decisive of this appeal and it is unnecessary to discuss рlaintiff’s other points.
The plaintiff, however, requests that the cause be remanded to give him an opportunity to amend his petition to state a different cause of action, charging the defendant with violating a criminal statute, § 559.450. The essence of this statute is that it is a misdemeanor to send a letter “threatening to accuse a person of a crime * * * or-to do any injury to the person, property, credit or reputation of another * *
Leave to amend the pеtition is a matter within the discretion of the trial court. Cady v. Hartford Acc. & Indem. Co.,
Plaintiff’s reliance on Bell v. Green,
“Our action * * * was motivated by the particular circumstances of this case, in that plaintiff’s counsel had relied on a theory discussed in the case of Haynie v. *371 Jones [233 Mo.App. 948 ,127 S.W.2d 105 ], which case had not been overruled or disapproved. * * * We now <jis-approved that theory, but for the first time. We have held that plaintiff’s , , , . . theory of submission was erroneous. * * * »
The court felt that, since the plaintiff hаd been misled by the prior state of the law, it was appropriate to remand the case, 1. c. 734, citing as authority Aiken v. Clary,
The judgment is affirmed.